U.S. Supreme Court … in supreme position on climate.

Climate change litigation is in its infancy, but experts predict growth in number of battles fought within the legal system.

Seven years ago, the United States court system became involved with making decisions on climate change. Today, in the absence of federal legislation, courts more and more are expected to play a key role on greenhouse gas regulation and on issues arising from claims of liability linked to alleged climate-related damages.

An especially notable case arose in 2003 when the Bush administration’s Environmental Protection Agency determined it lacked authority to regulate carbon dioxide emissions as pollutants. Massachusetts and 11 other states challenged that decision. The Supreme Court eventually heard the case, Mass. v. EPA, and in 2007 ruled in favor of the states (see Yale Forum article).

Scientists as Friends-of-Court, Expert Witnesses

The Supreme Court may address climate change again this term, potentially deciding whether climate cases can proceed as courts become front lines for the climate fight. Other cases related to damages from or regulatory action on climate change are at various stages of appeals. Looking into federal, state and regional legal actions on climate change can unearth new facets for media coverage.

Considering Climate Change a Public Nuisance

Two years ago, the Native American village of Kivalina, Alaska, sued energy-related companies, alleging public nuisance damages. The plaintiff’s legal complaint [PDF], maintains that “Global warming is destroying Kivalina and the village thus must be relocated soon or be abandoned and cease to exist.” The town of 400 people is seeking $400 million in damages. The case is on appeal in the Ninth Circuit Court of Appeals in San Francisco, Ca. That court held that the plaintiffs lacked standing to bring the suit and that as a public nuisance case, the challenge involves political judgments not properly addressed in court.

Public nuisance claims have historically meant interferences with the use of property involving annoyances like noise disturbances or noxious odors. But the U. S. Court of Appeals for the Second Circuit in New York City ruled in 2009 that carbon dioxide emissions qualify as a public nuisance and that district courts have jurisdiction to hear the cases.

Patrick Parenteau, a professor of law at the Vermont Law School, said in a phone interview that among the three public nuisance cases currently on appeal, the plaintiffs in Native Village of Kivalina v. ExxonMobil have the best shot at winning their case to secure damages. Parenteau said he takes this position partly because the Kivalina case alleges further that eight of the companies charged in the case were engaged in a conspiracy to mislead the public about the causes of global warming. The conspiracy allegations are comparable to those in tobacco cases that ultimately led to $200 billion in civil settlements and increased government regulation.

Which way in the courts for climate scales of justice?

The Kivalina case is one of five legal disputes developed with similar arguments that climate change is a public nuisance. In Calif. v. General Motors, the State of California sued six major automobile makers for allegedly “creating, and contributing to, an alleged public nuisance — global warming.” Pending appeal, the state withdrew its case in 2009. Three others are on appeal. In Comer v. Murphy Oil Co., filed in the Fifth Circuit Court of Appeals in New Orleans, Gulf Coast property owners filed a class-action lawsuit against energy companies for their contribution to global warming, which plaintiffs allege contributed to the intensity of Hurricane Katrina. The case was dismissed in May for technical reasons because the court had no quorum. Filed in Virginia, Steadfast Insurance v. AES is an insurance coverage litigation case that arose out of the Kivalina climate change suit. And in Connecticut v. American Electric Power, the plaintiffs seek “abatement of the defendants’ ongoing contributions to a public nuisance.”

Supreme Court at Center of Attention

The Supreme Court is expected to decide this fall whether to intervene in one case on appeal: Connecticut v. American Electric Power. The Court may review the Second Circuit’s decision, which favored Connecticut, finding that the district court has jurisdiction to hear the case and that claims for climate change damages could be brought before district courts.

That case seeks a judgment requiring power companies to reduce emissions of greenhouse gases over a period of years. The Second Circuit’s decision overruled a 2005 District Court decision that dismissed the case under the political question doctrine, ruling that federal courts cannot decide on this issue because greenhouse gas regulations should be decided by elected officials rather than the judicial branch.

“The somewhat startling thing, the Obama administration has weighed-in on behalf of one of the polluters in the [Conn. v. AEP] case, the Tennessee Valley Authority, to urge the court to grant review of the case,” said Parenteau. The Tennessee Valley Authority is a federally owned corporation. The Department of Justice brief argues that EPA is moving forward with regulation of carbon dioxide under the Mass v. EPA decision.

“Basically the solicitor general is saying that climate change is too big an issue. They’re saying the courts need to let the executive branch and the legislative branch handle this, and that the judicial branch should stay out of it. They’re saying that courts are not competent to make judgments on climate change,” Parenteau said. “If the Supreme Court finds there are no grounds for climate change to be considered a public nuisance, then the courthouse doors will be slammed shut. We are just holding our breath to see what happens.”

Role of Science in the Courtroom

Even if the Supreme Court rules against the public nuisance decision, Parenteau still anticipates an increase in climate change litigation. Most likely, the cases will surround state permits and rules on greenhouse gas regulations. “It won’t involve bringing climate science experts to testify at a trial. Rather, there will be some experts asked to write affidavits in challenging EPA’s scientific information in the record, to say you missed this or that,” he said.

Parenteau added that lawyers are trying to come up with new theories of liability. “In tobacco litigation, plaintiffs and lawyers found a way to win those cases. I foresee the same pattern. We’ll have a lot of failed cases and then a breakthrough,” said Parenteau.

According to William Buzbee, professor of law at Emory Law School, the public nuisance cases have a science component but they are less about climate science and more about legal conclusions. Adaptation issues are among the biggest concerns of states and regions. “The federal government is just getting into the climate game, but states are already quite active on adaptation issues, finding out their vulnerabilities,” Buzbee said in a telephone interview.

“Where climate science will play a role is in climate impacts on the environmental impact statements now being examined,” Buzbee said. “There is increasing pressure to measure and anticipate climate impacts.”

Despite strong evidence that climate change is substantially caused by human activities, Buzbee said, linking greenhouse gas emission to specific impacts and damages can be daunting.

“Science overwhelming knows climate change is occurring, but it doesn’t explain to individuals or nations what specific impacts they will experience,” Buzbee said. “Individual states continue to be quite active in addressing adaptation issues. That’s where you’ll see science and engineering influencing the courts through briefs.”

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Scientists as Friends-of-Court,
Expert Witnesses

A new challenge for judges and attorneys … equations.

As human-caused climate change and its impacts become clearer, courts will likely need more information through friends-of-the-court briefs written by climate scientists.

Michael Gerrard, Andrew Sabin Professor of Professional Practice and director of the Center for Climate Change Law at Columbia University, said litigation on damages to victims of climate change will involve a complex exercise of attributing climate change and its impacts to specific entities responsible for greenhouse gas emissions. In the next two years, Gerrard said, most briefs will be filed in relation to industry challenges to EPA.

“Climate scientists will be writing briefs for a less technical audience, since most lawyers and judges don’t do equations,” he said.

So far, only one climate court case has gone to trial, Green Mountain Chrysler v. Crombie, in which NASA climate scientist James Hansen, testified as an expert witness. He included equations in his testimony [PDF].

Gerrard, who oversees a comprehensive website of climate law cases, points to a 2006 amicus brief [PDF] that he says could be the gold-standard for the kind of expert opinion climate scientists might present in the future. The brief played a central role in the Mass. v. EPA case, arguing that EPA mischaracterized science in deciding it could not regulate greenhouse gases.

The brief was co-written by John Dernbach, a law professor at Widener University in Harrisburg, Pa., and a group of climate scientists that included two Nobel Prize winners and several members of the National Academy of Sciences.

Dernbach said in a phone interview that the brief used elements of persuasive argument. The scientists first stated the facts and characterized their understanding of the science, that the scientific community is virtually certain greenhouse gas emissions from human activities cause global climate change. Then the brief introduced an attention-getting but true element of surprise. “The scientists basically said, we didn’t think we would see climate change occurring so fast,” said Dernbach.

The authors then devoted an entire paragraph that emphasized their scientific credentials. Dernbach said the credibility of the scientists was an important element in the brief because they were “vastly qualified.” Authors of another brief, written by climate deniers, lacked such qualifications, according to Dernbach.

“We feel we made a significant impact on the case and that the court agreed with our view of the science in a five-to-four ruling,” Dernbach said. “You never really know what goes in to a decision, but from our point of view, the brief influenced the outcome.”

International Law as Tool for GHG Regulation

A recent paper published by the London-based Foundation for International Environmental Law and Development reports that victims of climate change could take industrialized nations to court and force progress on an international climate agreement. But legal experts say it’s difficult to predict how international pressures will play out.

“The ICJ (International Court of Justice) cannot force the U.S. to respond to suits filed, and it cannot issue binding judgments, but it could issue advisory opinions that found the U.S. in violation of international law and thereby further damage our global reputation and relations with other nations,” Pat Parenteau said. He added that he expects it will be a long time before any kind of international judgment could be reached.

“On the other hand, there are clearly victims of climate change that deserve to have their day in court and to have their demands for justice treated seriously,” Parenteau said. “For island nations of the Caribbean, it is theoretically possible to file a lawsuit to sue oil, gas, and coal for drowning their island. We are in an era where ideas sound nutty now, but they may not be as time goes on. Lawyers being clever-devils as they are, they are finding ways to use statutes to say [oil, gas, and coal companies] are causing problems and should pay for damages they caused.”